38542 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 

the FAA Administrator. Subtitle VII: 

Aviation Programs, describes in more 

detail the scope of the Agency’s 

authority. 

The FAA is issuing this rulemaking 

under the authority described in 

Subtitle VII, Part A, Subpart III, Section 

44701: General requirements. Under 

that section, Congress charges the FAA 

with promoting safe flight of civil 

aircraft in air commerce by prescribing 

regulations for practices, methods, and 

procedures the Administrator finds 

necessary for safety in air commerce. 

This regulation is within the scope of 

that authority because it addresses an 

unsafe condition that is likely to exist or 

develop on products identified in this 

rulemaking action. 

Regulatory Findings 

This AD will not have federalism 

implications under Executive Order 

13132. This AD will not have a 

substantial direct effect on the States, on 

the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

For the reasons discussed above, I 

certify that this AD: 

(1) Is not a ‘‘significant regulatory 

action’’ under Executive Order 12866, 

(2) Will not affect intrastate aviation 

in Alaska, and 

(3) Will not have a significant 

economic impact, positive or negative, 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

List of Subjects in 14 CFR Part 39 

Air transportation, Aircraft, Aviation 

safety, Incorporation by reference, 

Safety. 

Adoption of the Amendment 

Accordingly, under the authority 

delegated to me by the Administrator, 

the FAA amends 14 CFR part 39 as 

follows: 

PART 39—AIRWORTHINESS 

DIRECTIVES 

■ 1. The authority citation for part 39 

continues to read as follows: 

Authority: 49 U.S.C. 106(g), 40113, 44701. 

§ 39.13 [Amended] 

■ 2. The FAA amends § 39.13 by adding 

the following new airworthiness 

directive: 

2021–14–04 Dassault Aviation: 

Amendment 39–21631; Docket No. 

FAA–2021–0029; Project Identifier 

MCAI–2020–01216–T. 

(a) Effective Date 

This airworthiness directive (AD) is 

effective August 26, 2021. 

(b) Affected ADs 

None. 

(c) Applicability 

This AD applies to Dassault Aviation 

Model FALCON 7X airplanes and Model 

FALCON 2000EX airplanes, certificated in 

any category, as identified in European 

Union Aviation Safety Agency (EASA) AD 

2020–0188, dated August 24, 2020 (EASA AD 

2020–0188). 

(d) Subject 

Air Transport Association (ATA) of 

America Code 25, Equipment/Furnishings. 

(e) Reason 

This AD was prompted by a report that 

non-certified ANCRA seat tracks were 

installed on some airplanes and that those 

seat tracks might not sustain required loads 

during an emergency landing. The FAA is 

issuing this AD to address seat tracks that 

could fail and lead to seat detachment during 

an emergency landing, which could result in 

injury to airplane occupants and prevent 

evacuation of the airplane. 

(f) Compliance 

Comply with this AD within the 

compliance times specified, unless already 

done. 

(g) Requirements 

Except as specified in paragraph (h) of this 

AD: Comply with all required actions and 

compliance times specified in, and in 

accordance with, EASA AD 2020–0188. 

(h) Exceptions to EASA AD 2020–0188 

(1) Where EASA AD 2020–0188 refers to its 

effective date, this AD requires using the 

effective date of this AD. 

(2) The ‘‘Remarks’’ section of EASA AD 

2020–0188 does not apply to this AD. 

(i) No Reporting Requirement 

Although the service information 

referenced in EASA AD 2020–0188 specifies 

to submit certain information to the 

manufacturer, this AD does not include that 

requirement. 

(j) Other FAA AD Provisions 

The following provisions also apply to this 

AD: 

(1) Alternative Methods of Compliance 

(AMOCs): The Manager, Large Aircraft 

Section, International Validation Branch, 

FAA, has the authority to approve AMOCs 

for this AD, if requested using the procedures 

found in 14 CFR 39.19. In accordance with 

14 CFR 39.19, send your request to your 

principal inspector or responsible Flight 

Standards Office, as appropriate. If sending 

information directly to the Large Aircraft 

Section, International Validation Branch, 

send it to the attention of the person 

identified in paragraph (k) of this AD. 

Information may be emailed to: 9-AVS-AIR730-AMOC@faa.gov. Before using any 

approved AMOC, notify your appropriate 

principal inspector, or lacking a principal 

inspector, the manager of the responsible 

Flight Standards Office. 

(2) Contacting the Manufacturer: For any 

requirement in this AD to obtain instructions 

from a manufacturer, the instructions must 

be accomplished using a method approved 

by the Manager, Large Aircraft Section, 

International Validation Branch, FAA; or 

EASA; or Dassault Aviation’s EASA Design 

Organization Approval (DOA). If approved by 

the DOA, the approval must include the 

DOA-authorized signature. 

(k) Related Information 

For more information about this AD, 

contact Tom Rodriguez, Aerospace Engineer, 

Large Aircraft Section, International 

Validation Branch, FAA, 2200 South 216th 

St., Des Moines, WA 98198; telephone and 

fax 206–231–3226; email tom.rodriguez@

faa.gov. 

(l) Material Incorporated by Reference 

(1) The Director of the Federal Register 

approved the incorporation by reference 

(IBR) of the service information listed in this 

paragraph under 5 U.S.C. 552(a) and 1 CFR 

part 51. 

(2) You must use this service information 

as applicable to do the actions required by 

this AD, unless this AD specifies otherwise. 

(i) European Union Aviation Safety Agency 

(EASA) AD 2020–0188, dated August 24, 

2020. 

(ii) [Reserved] 

(3) For EASA AD 2020–0188, contact 

EASA, Konrad-Adenauer-Ufer 3, 50668 

Cologne, Germany; telephone +49 221 8999 

000; email ADs@easa.europa.eu; internet 

www.easa.europa.eu. You may find this 

EASA AD on the EASA website at https://

ad.easa.europa.eu. 

(4) You may view this material at the FAA, 

Airworthiness Products Section, Operational 

Safety Branch, 2200 South 216th St., Des 

Moines, WA. For information on the 

availability of this material at the FAA, call 

206–231–3195. This material may be found 

in the AD docket on the internet at https:// 

www.regulations.gov by searching for and 

locating Docket No. FAA–2021–0029. 

(5) You may view this material that is 

incorporated by reference at the National 

Archives and Records Administration 

(NARA). For information on the availability 

of this material at NARA, email fedreg.legal@

nara.gov, or go to: https://www.archives.gov/ 

federal-register/cfr/ibr-locations.html. 

Issued on June 22, 2021. 

Lance T. Gant, 

Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2021–15465 Filed 7–21–21; 8:45 am] 

BILLING CODE 4910–13–P 

FEDERAL TRADE COMMISSION 

16 CFR Parts 0 and 1 

Revisions to Rules of Practice 

AGENCY: Federal Trade Commission. 

ACTION: Final rule. 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 38543 

SUMMARY: The Commission is amending 

its rules of practice. The revised rules 

modernize procedures for rulemakings 

to define unfair or deceptive acts or 

practices under the FTC Act to provide 

for more efficient conduct of rulemaking 

proceedings. The Commission is also 

revising these rules to better reflect the 

agency’s organizational structure and 

authority. 

DATES: This rule is effective July 22, 

2021. 

FOR FURTHER INFORMATION CONTACT: 

Josephine Liu, Assistant General 

Counsel for Legal Counsel, (202) 326– 

2170, or Kenny Wright, Attorney, (202) 

326–2907, Office of the General 

Counsel, Federal Trade Commission, 

600 Pennsylvania Avenue NW, 

Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: The 

Federal Trade Commission is revising 

the rules in part 0 and subpart B of part 

1 its rules of practice, 16 CFR parts 0 

and 1. 

The Commission is amending part 0 

to more accurately reflect the agency’s 

current enforcement authority and 

organizational structure. 

The amendments to part 1, subpart B 

will govern rulemaking proceedings 

under Section 18(a)(1)(B) of the Federal 

Trade Commission Act (15 U.S.C. 

57(a)(1)(B)) to define unfair or deceptive 

acts or practices. These amendments 

modernize the procedures for 

rulemaking proceedings under Section 

18 and ensure conformance with the 

statutory structure for such proceedings. 

The Commission is also making 

conforming edits to make the rule 

language more gender-neutral; use 

active voice instead of passive voice; 

replace ambiguous uses of ‘‘shall’’ with 

‘‘may’’, ‘‘will’’, or ‘‘must’’ as 

appropriate; make nonsubstantive 

grammatical changes; and add and 

standardize citations to the U.S. Code 

where appropriate. 

I. Revisions to Part 0—Organization 

The Commission is revising certain 

provisions in part 0 of its rules to better 

reflect the agency’s current enforcement 

authority and organizational structure. 

§ 0.3: Hours 

In § 0.3, the Commission is correcting 

outdated nomenclature: The agency’s 

offices outside of Washington, DC are 

regional offices, not field offices. The 

Commission is also clarifying that FTC 

offices are generally open from 8:30 a.m. 

to 5 p.m., except on Saturdays, Sundays, 

and legal holidays. 

§ 0.4: Laws Administered 

In § 0.4, the Commission is revising 

the listing of the various laws under 

which the Commission exercises 

enforcement and administrative 

authority. The Commission now 

enforces or administers more than 80 

laws, which are listed at https://

www.ftc.gov/enforcement/statutes. The 

web page, which is updated regularly, 

contains summaries of the laws and 

links to the relevant statutory texts. 

Given that the web page is more 

comprehensive and more useful than a 

static list of laws, the Commission is 

amending § 0.4 by deleting most items 

on the list and adding a cross reference 

to the web page. 

§ 0.8: The Chair 

The Commission is amending § 0.8 to 

designate the Chair to serve as the Chief 

Presiding Officer or to designate an 

alternative Chief Presiding Officer for 

rulemaking proceedings under Section 

18(a)(1)(B) of the FTC Act. As Chief 

Presiding Officer, the Chair will also 

retain authority to designate another 

Commissioner or another person who is 

not responsible to any other official or 

employee of the Commission as Chief 

Presiding Officer. In addition, Section 

0.8 is also being revised to include 

information about three units that report 

to the Office of the Chair: The Office of 

the Chief Privacy Officer, the Office of 

Equal Employment Opportunity and 

Workplace Inclusion, and the Office of 

Policy Planning. 

§ 0.9: Organization Structure 

The Commission is deleting the 

regional offices from the list of principal 

units included in § 0.9. The regional 

offices operate under the supervision of 

the Bureaus of Consumer Protection and 

Competition, so listing the regional 

offices as principal units is not an 

accurate description of the agency’s 

organizational structure. 

§ 0.11: Office of the General Counsel 

Section 0.11 is being revised to 

provide a more detailed description of 

the situations when the Office of the 

General Counsel (OGC) represents the 

Commission in court or before 

administrative agencies, and also to add 

that OGC represents the agency in 

employment and labor disputes. 

§ 0.12: Office of the Secretary 

The Commission is revising § 0.12 to 

specify that an Acting Secretary can sign 

Commission orders and official 

correspondence in the Secretary’s 

absence. 

§ 0.14: Office of Administrative Law 

Judges 

In § 0.14, to match the changes to 

§ 0.8, the Commission is deleting the 

reference to the Chief Administrative 

Law Judge serving as the Chief Presiding 

Officer. The Commission is also deleting 

a sentence about ALJs being appointed 

under the authority of the Office of 

Personnel Management. This sentence is 

no longer legally accurate after Lucia v. 

SEC, 585 U.S. ll, 138 S. Ct. 2044 

(2018) and Executive Order 13843, 83 

FR 32755 (2018). 

§§ 0.16 and 0.17: Bureaus of 

Competition and Consumer Protection 

The Commission is revising §§ 0.16 

and 0.17 to harmonize the description of 

the work performed by the Bureaus of 

Competition and Consumer Protection. 

Both Bureaus have similar investigative 

and enforcement responsibilities. The 

Commission is also clarifying in § 0.17 

that the Bureau of Consumer Protection 

(BCP) may initiate civil penalty 

proceedings for rule violations and 

deleting an outdated discussion about 

BCP maintaining the agency’s public 

reference facilities. 

§ 0.19: The Regional Offices 

The Commission is updating § 0.19 to 

reflect the regional offices’ current 

responsibilities and organizational 

structure. The new language makes 

clearer that the regional offices are 

responsible for enforcement as well as 

investigations. In addition, the regional 

offices are no longer under the general 

supervision of the Office of the 

Executive Director. Instead, they are 

under the general supervision of the 

Bureaus of Competition and Consumer 

Protection and clear their activities 

through the appropriate Bureau. Section 

0.19(b) is being revised to reflect the 

various offices’ current geographic areas 

of responsibility; to delete the regional 

offices’ address information, which can 

quickly become outdated; and to reflect 

the fact that the Western Region has 

split into two separate regions: Western 

Region Los Angeles and Western Region 

San Francisco. 

§ 0.20: Office of International Affairs 

The Commission is revising § 0.20 to 

clarify the role of the Office of 

International Affairs (OIA). OIA’s 

responsibilities include handling the 

FTC’s international antitrust and 

consumer protection missions in 

coordination and consultation with the 

appropriate Bureaus; cooperating with 

foreign authorities on investigations and 

enforcement; participating in the United 

States government interagency process 

to promote agency views on 


lotter on DSK11XQN23PROD with RULES1
38544 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 

international issues within the FTC’s 

mandate; coordinating staff exchanges 

and internships at the FTC for staff of 

non-U.S. competition, consumer 

protection, and privacy agencies; and 

building capacity at other agencies 

around the world. 

II. Revisions to Part 1, Subpart B— 

Rules and Rulemaking Under Section 

18(a)(1)(B) of the FTC Act 

The Commission is revising part 1, 

subpart B of its rules to modernize the 

procedures governing rulemaking under 

Section 18(a)(1)(B) of the FTC Act, 

provide for efficient conduct of 

rulemaking proceedings, and to better 

reflect the requirements of the FTC Act. 

§ 1.11: Commencement of a Rulemaking 

Proceeding 

The Commission is revising 

procedures under § 1.11 for the 

initiation of rulemaking proceedings 

under Section 18(a)(1)(B) of the FTC 

Act. Pursuant to these amendments, 

rulemaking proceedings will commence 

with the issuance of a notice of 

proposed rulemaking that will include 

the text of the proposed rule, a 

preliminary regulatory analysis and 

explanation of the Commission’s 

proposal, and an invitation for 

interested persons to comment. 

Pursuant to the requirements of the FTC 

Act, the Commission will afford 

interested persons an opportunity to 

request an informal hearing in response 

to this notice and will identify disputed 

issues of material fact, if any, necessary 

to be resolved in the rulemaking 

proceeding. 

Interested persons who request to 

present their position orally in an 

informal hearing must file a request 

with the Commission after issuance of a 

notice of proposed rulemaking. This 

request must include a statement 

identifying the person’s interests in the 

proceeding and may propose additional 

disputed issues for resolution at the 

informal hearing. 

§ 1.12: Notices of Informal Hearings and 

Designations 

Section 18(c)(2) of the FTC Act also 

provides an opportunity for interested 

persons to submit their views on a 

proposed rule orally at an informal 

hearing. 15 U.S.C. 57a(c)(2). In § 1.12, 

the Commission is amending the 

provisions governing the conduct of 

such proceedings. When an informal 

hearing is requested or the Commission 

determines in its discretion to hold one, 

the informal hearing will be initiated by 

a notice of informal hearing. 

Pursuant to the amendments, the 

Commission will issue an initial notice 

of informal hearing to announce 

necessary details for an informal 

hearing, including the designation of a 

presiding officer, the time and place of 

the informal hearing, a final list of 

disputed issues of material fact to be 

resolved, and a list of persons who will 

make oral presentations. The initial 

notice of informal hearing will also 

invite interested persons to submit 

requests for cross-examination or to 

present rebuttal submissions. 

Based upon submissions in response 

to the initial notice of informal hearing, 

the Commission will issue a final notice 

of informal hearing providing a list of 

interested persons who will conduct 

cross-examination regarding disputed 

issues of material fact, any groups with 

the same or similar interests who will be 

required to select a representative to 

conduct cross-examination on behalf of 

the group, and any interested persons 

who will be permitted to make rebuttal 

submissions. 

To provide for the efficient conduct of 

informal hearings, the amendments 

retain provisions authorizing the 

Commission to group persons with 

similar interests and require the 

selection of a group representative to 

conduct cross-examination. The 

amended rules preserve the authority of 

the presiding officer to designate group 

representatives if a group of interested 

persons is unable to agree upon a 

representative and to entertain requests 

for an individual to conduct crossexamination on select issues that affect 

that person’s particular interest if a 

designated group representative would 

not adequately represent their interests. 

§ 1.13: Conduct of Informal Hearing by 

the Presiding Officer 

The Commission is amending § 1.13 

to focus on the presiding officer’s 

powers and responsibilities for the 

orderly conduct of an informal hearing. 

The amendments provide the presiding 

officer with the powers necessary to 

conduct effective and orderly informal 

hearings in rulemaking proceedings. 

The amendments provide that the 

Commission will establish the time and 

location of informal hearings, select 

participants who shall provide oral 

presentations, and designate disputed 

issues of material fact, if any, that are to 

be resolved in the rulemaking 

proceedings. The presiding officer 

designated by the Commission will have 

the necessary powers to conduct 

hearings in an efficient manner, 

including the power to impose time 

limits on oral presentations and to select 

or modify representatives designated to 

conduct cross-examination. The 

amendments also provide that informal 

hearings will be limited to a total of 5 

days over the course of a thirty-day 

period, unless Commission extends the 

time for conduct of a hearing upon a 

showing of good cause. 

The amendments remove references 

to direct examination in informal 

hearings. Providing interested persons 

with the opportunity to present their 

positions orally does not require the 

formality of direct examination. 

Consistent with Section 18 of the FTC 

Act, the amended rules continue to 

allow an interested person to crossexamine those making oral 

presentations if appropriate and 

required to address disputed issues of 

material fact. 

The amendments also remove 

procedures to allow the presiding officer 

to compel the attendance of persons, 

require the production of documents, or 

require responses to written questions. 

The Commission believes that these 

procedures are unnecessary for the 

conduct of effective informal hearings in 

rulemaking proceedings and are 

inconsistent with the informal nature of 

such proceedings. 

The revisions also eliminate the 

requirement that Commission staff 

publish a staff report containing an 

analysis of the rulemaking record and 

recommendations as to the form of the 

final rule for public comment. Such 

reports are not statutorily required in 

rulemaking proceedings under Section 

18(a)(1)(B), and the Commission 

believes that eliminating this 

requirement will provide for more 

efficient proceedings without 

undermining the Commission’s ability 

to formulate effective rules. The 

amendments also eliminate provisions 

providing for an additional comment 

period on the presiding officer’s report 

on the rulemaking proceeding. 

The proposed amendments eliminate 

procedures allowing interested persons 

to petition the Commission or to appeal 

rulings of the presiding officer during an 

informal hearing. These provisions add 

procedural complexity to informal 

hearings that are inconsistent with the 

informal nature of the rulemaking 

process. In addition, they are 

unnecessary given the enhanced role the 

Commission will play in establishing 

the agenda of the informal hearing and 

designating disputed issues, if any, for 

resolution at the informal hearing. 

Instead, the amended rules provide a 

separate post-hearing process for 

petitions seeking Commission review of 

any rulings by the presiding officer 

denying or limiting the petitioner’s 

ability to conduct cross-examination or 

make rebuttal submissions. 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 38545 

1 In particular, the Commission is revising the 

rules to eliminate the use of he, him, or his as 

default pronouns. This change conforms with the 

recommendations of numerous style manuals. See, 

e.g., Lauren Easton, Making a Case for a Singular 

‘‘They,’’ The Definitive Source (Mar. 24, 2017), 

https://blog.ap.org/products-and-services/makinga-case-for-a-singular-they (discussing the following 

addition to the AP Stylebook: ‘‘They/them/their is 

acceptable in limited cases as a singular and-or 

gender-neutral pronoun, when alternative wording 

is overly awkward or clumsy.’’); Chicago Style for 

the Singular They (Apr. 3, 2017), http://

cmosshoptalk.com/2017/04/03/chicago-style-forthe-singular-they/ (noting that the seventeenth 

edition of the Chicago Manual of Style does not 

prohibit the use of singular they as a substitute for 

the generic he in formal writing, but recommends 

avoiding it and offers various other ways to achieve 

bias-free language); Bill Walsh, The Post Drops the 

‘‘Mike’’—and the Hyphen in ‘‘Email’’, Wash. Post 

(Dec. 4, 2015), https://www.washingtonpost.com/ 

opinions/the-post-drops-the-mike-and-the-hyphenin-email/2015/12/04/ccd6e33a-98fa-11e5-8917- 

653b65c809eb_story.html (noting that the 

Washington Post stylebook advises trying to write 

around the problem, perhaps by changing singulars 

to plurals, before using the singular they as a last 

resort). 

2A regulatory flexibility analysis under the RFA 

is required only when an agency must publish a 

notice of proposed rulemaking for comment. See 5 

U.S.C. 603. 

§ 1.18: Rulemaking Record 

Consistent with Section 18 of the FTC 

Act, the amended rules continue to 

provide that communications about the 

merits of a rulemaking to a 

Commissioner or Commissioner’s 

advisor will be placed on the 

rulemaking record. The Commission is 

revising § 1.18 to remove unnecessary 

language distinguishing between oral 

communications received during the 

comment period and those received 

following the close of the comment 

period on a proposed rule. The 

amendments require that a 

Commissioner’s advisor will ensure that 

any oral communications to a 

Commissioner or Commissioner’s 

advisor during a rulemaking proceeding 

will be placed on the rulemaking record 

through either a transcript of the 

communication or a memorandum that 

summarizes the meeting, including a list 

of all persons attending and a summary 

of all data and arguments presented. In 

addition, the amendments clarify the 

treatment of written communications to 

a Commissioner or their staff during the 

rulemaking proceeding. The amended 

rules provide that written 

communications received during a time 

period designated for acceptance of 

written comments or submissions will 

be placed on the rulemaking record, 

while written communications received 

outside these designated periods will be 

placed on the public record unless the 

Commission votes to place them on the 

rulemaking record. The amendments 

also provide that communications from 

Members of Congress will be placed on 

the rulemaking record if received during 

the time period for comments and on 

the public record if received following 

the time period for public comment. 

III. Global Revisions 

The Commission is also making 

various changes throughout parts 0 and 

1 to: 

• Reflect that Commission 

rulemaking notices in proceedings 

under Section 18(a)(1)(B) of the FTC Act 

must be submitted to the Committee on 

Energy and Commerce of the House of 

Representatives; 

• Make the rule language more 

gender-neutral; 1

• Use active voice instead of passive 

voice; 

• Replace ambiguous uses of ‘‘shall’’ 

with ‘‘may’’, ‘‘will’’, or ‘‘must’’ as 

appropriate; 

• Make nonsubstantive grammatical 

changes; and 

• Add and standardize citations to 

the U.S. Code where appropriate. 

IV. Procedural Requirements 

The Commission has determined that 

this rule is exempt from the notice and 

comment requirements of the 

Administrative Procedure Act, 5 U.S.C. 

553(b), as a rule of agency organization, 

practice, and procedure. In addition, 

only substantive rules require 

publication 30 days prior to their 

effective date. 5 U.S.C. 553(d). 

Therefore, this final rule is effective 

upon publication in the Federal 

Register. The requirements of the 

Regulatory Flexibility Act also do not 

apply.2 Further, this rule does not 

contain any information collection 

requirements as defined by the 

Paperwork Reduction Act of 1995 as 

amended. 44 U.S.C. 3501 et seq. 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a ‘‘major 

rule,’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 16 CFR Part 1 

Administrative practice and 

procedure. 

For the reasons set forth in the 

preamble, the Federal Trade 

Commission amends title 16, chapter I, 

subchapter A of the Code of Federal 

Regulations as follows: 

PART 0—ORGANIZATION 

■ 1. The authority for Part 0 continues 

to read as follows: 

Authority: 5 U.S.C. 552(a)(1); 15 U.S.C. 

46(g). 

§ 0.1 [Amended] 

■ 2. In § 0.1, remove the word ‘‘which’’ 

wherever it appears and add, in its 

place, the word ‘‘that’’. 

■ 3. Amend § 0.2 by revising the first 

sentence to read as follows: 

§ 0.2 Official address. 

The principal office of the 

Commission is in Washington, DC. 

* * * 

■ 4. Revise § 0.3 to read as follows: 

§ 0.3 Hours. 

Principal and regional offices are 

open from 8:30 a.m. to 5 p.m., except on 

Saturdays, Sundays, and legal holidays. 

■ 5. Revise § 0.4 to read as follows: 

§ 0.4 Laws administered. 

The Commission exercises 

enforcement and administrative 

authority under the Federal Trade 

Commission Act (15 U.S.C. 41–58), 

Clayton Act (15 U.S.C. 12–27), and more 

than 70 other Federal statutes, which 

are listed at https://www.ftc.gov/ 

enforcement/statutes. 

■ 6. Revise § 0.5 to read as follows: 

§ 0.5 Laws authorizing monetary claims. 

(a) The Commission is authorized to 

entertain monetary claims against it 

under three statutes. 

(1) The Federal Tort Claims Act (28 

U.S.C. 2671–2680) provides that the 

United States will be liable for injury or 

loss of property or personal injury or 

death caused by the negligent or 

wrongful acts or omissions of its 

employees acting within the scope of 

their employment or office. 

(2) The Military Personnel and 

Civilian Employees Claims Act of 1964 

(31 U.S.C. 3701, 3721) authorizes the 

Commission to compensate employees’ 

claims for damage to or loss of personal 

property incident to their service. 

(3) The Equal Access to Justice Act (5 

U.S.C. 504 and 28 U.S.C. 2412) provides 

that an eligible prevailing party other 

than the United States will be awarded 

fees and expenses incurred in 

connection with any adversary 

adjudicative and court proceeding, 

unless the adjudicative officer finds that 

the agency was substantially justified or 

that special circumstances make an 

award unjust. 

(b) In addition, eligible parties, 

including certain small businesses, will 

be awarded fees and expenses incurred 

in defending against an agency demand 

that is substantially in excess of the 

final decision of the adjudicative officer 

and is unreasonable when compared 

with such decision under the facts and 

circumstances of the case, unless the 


lotter on DSK11XQN23PROD with RULES1
38546 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 

adjudicative officer finds that the party 

has committed a willful violation of law 

or otherwise acted in bad faith, or 

special circumstances make an award 

unjust. Questions may be addressed to 

the Office of the General Counsel. 

§ 0.7 [Amended] 

■ 7. Amend § 0.7 by: 

■ a. In paragraph (a), adding the words 

‘‘(15 U.S.C. 41 note)’’ after the term 

‘‘1961’’; and 

■ b. In paragraph (b), removing the word 

‘‘shall’’ and adding, in its place, the 

word ‘‘will’’. 

■ 8. Revise § 0.8 to read as follows: 

§ 0.8 The Chair. 

The Chair of the Commission is 

designated by the President, and, 

subject to the general policies of the 

Commission, is the executive and 

administrative head of the agency. The 

Chair presides at meetings of and 

hearings before the Commission and 

participates with other Commissioners 

in all Commission decisions. In 

rulemaking proceedings under section 

18(a)(1)(B) of the Federal Trade 

Commission Act (15 U.S.C. 

57a(a)(1)(B)), the Chair serves as or may 

designate another Commissioner to 

serve as the Chief Presiding Officer or 

may appoint another person to serve as 

Chief Presiding Officer who is not 

responsible to any other official or 

employee of the Commission. Attached 

to the Office of the Chair, and reporting 

directly to the Chair, and through the 

Chair to the Commission, are the 

following staff units: 

(a) The Office of the Chief Privacy 

Officer, which ensures that the agency’s 

practices and policies comply with 

applicable federal information privacy 

and security requirements and 

standards; 

(b) The Office of Congressional 

Relations, which coordinates all liaison 

activities with Congress; 

(c) The Office of Equal Employment 

Opportunity and Workplace Inclusion, 

which advises and assists the Chair and 

the organizational units in EEO policy 

and diversity management issues; 

(d) The Office of Policy Planning, 

which assists the Commission to 

develop and implement long-range 

competition and consumer protection 

policy initiatives; and 

(e) The Office of Public Affairs, which 

furnishes information concerning 

Commission activities to news media 

and the public. 

■ 9. Revise § 0.9 to read as follows: 

§ 0.9 Organization structure. 

The Federal Trade Commission 

includes the following principal units: 

Office of the Executive Director; Office 

of the General Counsel; Office of the 

Secretary; Office of the Inspector 

General; Office of Administrative Law 

Judges; Bureau of Competition; Bureau 

of Consumer Protection; Bureau of 

Economics; and Office of International 

Affairs. 

§ 0.10 [Amended] 

■ 10. In § 0.10, in the first sentence, add 

a comma after the word ‘‘programs’’. 

■ 11. Revise § 0.11 to read as follows: 

§ 0.11 Office of the General Counsel. 

The General Counsel is the 

Commission’s chief law officer and 

adviser, who renders necessary legal 

services to the Commission; represents 

the Commission in the Federal and State 

courts, and before administrative 

agencies in coordination with the 

Bureaus, in appellate litigation, 

investigative compulsory process 

enforcement, and defensive litigation; 

advises the Commission and other 

agency officials and staff with respect to 

questions of law and policy, including 

advice with respect to legislative 

matters and ethics; represents the 

agency in employment and labor 

disputes; and responds to requests and 

appeals filed under the Freedom of 

Information and Privacy Acts and to 

intra- and intergovernmental 

information access requests. 

■ 12. Revise § 0.12 to read as follows: 

§ 0.12 Office of the Secretary. 

The Secretary is the legal custodian of 

the Commission’s seal, property, papers, 

and records, including legal and public 

records, and is responsible for the 

minutes of Commission meetings. The 

Secretary, or in the Secretary’s absence 

an Acting Secretary, signs Commission 

orders and official correspondence. In 

addition, the Secretary is responsible for 

the publication of all Commission 

actions that appear in the Federal 

Register and for the publication of 

Federal Trade Commission decisions. 

§ 0.13 [Amended] 

■ 13. In § 0.13, in the second sentence, 

add a comma after the word 

‘‘efficiency’’. 

■ 14. Revise § 0.14 to read as follows: 

§ 0.14 Office of Administrative Law 

Judges. 

Administrative law judges are 

officials to whom the Commission, in 

accordance with law, delegates the 

initial performance of statutory factfinding functions and initial rulings on 

conclusions of law, to be exercised in 

conformity with Commission decisions 

and policy directives and with its Rules 

of Practice. 

■ 15. Revise § 0.16 to read as follows: 

§ 0.16 Bureau of Competition. 

The Bureau is responsible for 

enforcing Federal antitrust and trade 

regulation laws under section 5 of the 

Federal Trade Commission Act (15 

U.S.C. 45), the Clayton Act (15 U.S.C. 

12–27), and a number of other special 

statutes that the Commission is charged 

with enforcing. The Bureau carries out 

its responsibilities by investigating 

alleged law violations, recommending to 

the Commission such further steps as 

may be appropriate, and prosecuting 

enforcement actions authorized by the 

Commission. Such further steps may 

include seeking injunctive and other 

relief as permitted by statute in Federal 

district court; litigating before the 

agency’s administrative law judges; 

negotiating settlement of complaints; 

and initiating rules or reports. The 

Bureau also conducts compliance 

investigations and, in compliance with 

Section 16(a)(1) of the FTC Act (15 

U.S.C. 56(a)(1)), initiates proceedings for 

civil penalties to assure compliance 

with final Commission orders dealing 

with competition and trade restraint 

matters. The Bureau’s activities also 

include business and consumer 

education and staff advice on 

competition laws and compliance, and 

liaison functions with respect to foreign 

antitrust and competition law 

enforcement agencies and organizations, 

including requests for international 

enforcement assistance. 

■ 16. Revise § 0.17 to read as follows: 

§ 0.17 Bureau of Consumer Protection. 

The Bureau is responsible for 

enforcing the prohibition against unfair 

or deceptive acts or practices in section 

5 of the Federal Trade Commission Act 

(15 U.S.C. 45), as well as numerous 

special statutes that the Commission is 

charged with enforcing. The Bureau 

carries out its responsibilities by 

investigating alleged law violations, 

recommending to the Commission such 

further steps as may be appropriate, and 

prosecuting enforcement actions 

authorized by the Commission. Such 

further steps may include seeking 

injunctive and other relief as permitted 

by statute in Federal district court; 

litigating before the agency’s 

administrative law judges; negotiating 

settlement of complaints; initiating rules 

or reports; and initiating civil penalty 

proceedings for rule violations. The 

Bureau also conducts compliance 

investigations and, in compliance with 

Section 16(a)(1) of the FTC Act (15 

U.S.C. 56(a)(1)), initiates proceedings for 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 38547 

civil penalties to assure compliance 

with final Commission orders dealing 

with unfair or deceptive practices. The 

Bureau participates in trade regulation 

rulemaking proceedings under section 

18(a)(1)(B) of the Federal Trade 

Commission Act (15 U.S.C. 57a(a)(1)(B)) 

and other rulemaking proceedings 

under statutory authority. In addition, 

the Bureau seeks to educate both 

consumers and the business community 

about the laws it enforces, and to assist 

and cooperate with other state, local, 

and international agencies and 

organizations in consumer protection 

enforcement and regulatory matters. 

§ 0.18 [Amended] 

■ 17. Amend § 0.18 by, 

■ a. Removing the word ‘‘bureau’’ 

wherever it appears and adding, in its 

place, the word ‘‘Bureau’’. 

■ b. Removing the word ‘‘bureaus’’ and 

adding, in its place, the word 

‘‘Bureaus’’. 

■ 18. Revise § 0.19 to read as follows: 

§ 0.19 The Regional Offices. 

(a) These offices are investigatory and 

enforcement arms of the Commission, 

and have responsibility for 

investigational, trial, compliance, and 

consumer educational activities as 

delegated by the Commission. They are 

under the general supervision of the 

Bureaus of Competition and Consumer 

Protection and clear their activities 

through the appropriate operating 

Bureau. 

(b) The names and geographic areas of 

responsibility of the respective regional 

offices are as follows: 

(1) Northeast Region (located in New 

York City, New York), covering 

Connecticut, Maine, Massachusetts, 

New Hampshire, New Jersey, New York, 

Rhode Island, Vermont, Puerto Rico, 

and the U.S. Virgin Islands. 

(2) Southeast Region (located in 

Atlanta, Georgia), covering Alabama, 

Florida, Georgia, Mississippi, North 

Carolina, South Carolina, and 

Tennessee. 

(3) East Central Region (located in 

Cleveland, Ohio), covering Delaware, 

District of Columbia, Maryland, 

Michigan, Ohio, Pennsylvania, Virginia, 

and West Virginia. 

(4) Midwest Region (located in 

Chicago, Illinois), covering Illinois, 

Indiana, Iowa, Kansas, Kentucky, 

Minnesota, Missouri, Nebraska, North 

Dakota, South Dakota, and Wisconsin. 

(5) Southwest Region (located in 

Dallas, Texas), covering Arkansas, 

Louisiana, New Mexico, Oklahoma, and 

Texas. 

(6) Northwest Region (located in 

Seattle, Washington), covering Alaska, 

Idaho, Montana, Oregon, Washington, 

and Wyoming. 

(7) Western Region Los Angeles 

(located in Los Angeles, California), 

covering Arizona, Hawaii, Southern 

California, Southern Nevada, Guam, the 

Northern Mariana Islands, and 

American Samoa. 

(8) Western Region San Francisco 

(located in San Francisco, California), 

covering Colorado, Northern California, 

Northern Nevada, and Utah. 

(c) Each of the regional offices is 

supervised by a Regional Director and 

an Assistant Regional Director, who are 

available for conferences with attorneys, 

consumers, and other members of the 

public on matters relating to the 

Commission’s activities. 

■ 19. Revise § 0.20 to read as follows: 

§ 0.20 Office of International Affairs. 

The Office of International Affairs 

(OIA) is responsible for the agency’s 

international antitrust and international 

consumer protection missions in 

coordination and consultation with the 

appropriate Bureaus, including the 

design and implementation of the 

Commission’s international program. 

OIA provides support to the Bureaus of 

Competition and Consumer Protection 

with regard to the international aspects 

of investigation and prosecution of 

unlawful conduct; builds cooperative 

relationships between the Commission 

and foreign authorities; cooperates with 

foreign authorities on investigations and 

enforcement; works closely with the 

Bureaus to recommend agency policies 

to the Commission; works, through 

bilateral relationships, multilateral 

organizations, and trade fora to promote 

Commission priorities and policies; 

participates in the United States 

government interagency process to 

promote agency views on international 

issues within the FTC’s mandate; and 

coordinates staff exchanges and 

internships at the FTC for staff of nonU.S. competition, consumer protection, 

and privacy agencies. OIA also assists 

young agencies around the world to 

build capacity to promote sound 

competition and consumer protection 

law enforcement. 

PART 1—GENERAL PROCEDURES 

■ 20. Revise the authority for subpart B 

of Part 1 to read as follows: 

Authority: 15 U.S.C. 46; 15 U.S.C. 57a; 5 

U.S.C. 552; 5 U.S.C. 601 note. 

■ 21. Revise § 1.7 to read as follows: 

§ 1.7 Scope of rules in this subpart. 

The rules in this subpart apply to and 

govern proceedings for the 

promulgation of rules as provided in 

section 18(a)(1)(B) of the Federal Trade 

Commission Act (15 U.S.C. 

57a(a)(1)(B)). Such rules will be known 

as trade regulation rules. All other 

rulemaking proceedings will be 

governed by the rules in subpart C of 

this part, except as otherwise required 

by law or as otherwise specified in this 

chapter. 

■ 22. Revise § 1.8 to read as follows: 

§ 1.8 Nature, authority, and use of trade 

regulation rules. 

(a) For the purpose of carrying out the 

provisions of the Federal Trade 

Commission Act, the Commission is 

empowered to promulgate trade 

regulation rules, which define with 

specificity acts or practices that are 

unfair or deceptive acts or practices in 

or affecting commerce. Trade regulation 

rules may include requirements 

prescribed for the purpose of preventing 

such acts or practices. A violation of a 

rule constitutes an unfair or deceptive 

act or practice in violation of section 

5(a)(1) of that Act (15 U.S.C. 45(a)(1)), 

unless the Commission otherwise 

expressly provides in its rule. The 

respondents in an adjudicative 

proceeding may show that the alleged 

conduct does not violate the rule or 

assert any other defense to which they 

are legally entitled. 

(b) The Commission at any time may 

conduct such investigations, make such 

studies, and hold such conferences as it 

may deem necessary. All or any part of 

any such investigation may be 

conducted under the provisions of part 

2, subpart A of this chapter. 

§ 1.9 [Amended] 

■ 23. In § 1.9, remove the word ‘‘shall’’ 

from wherever it appears in the section 

and add, in its place, the word ‘‘will’’. 

■ 24. Revise § 1.10 to read as follows: 

§ 1.10 Advance notice of proposed 

rulemaking. 

(a) Prior to the commencement of any 

trade regulation rule proceeding, the 

Commission must publish in the 

Federal Register an advance notice of 

such proposed proceeding. 

(b) The advance notice must: 

(1) Contain a brief description of the 

area of inquiry under consideration, the 

objectives which the Commission seeks 

to achieve, and possible regulatory 

alternatives under consideration by the 

Commission; and 

(2) Invite the response of interested 

persons with respect to such proposed 

rulemaking, including any suggestions 

or alternative methods for achieving 

such objectives. 

(c) The advance notice must be 

submitted to the Committee on 


lotter on DSK11XQN23PROD with RULES1
38548 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 

Commerce, Science, and Transportation 

of the Senate and to the Committee on 

Energy and Commerce of the House of 

Representatives. 

(d) The Commission may, in addition 

to publication of the advance notice, use 

such additional mechanisms as it 

considers useful to obtain suggestions 

regarding the content of the area of 

inquiry before publication of a notice of 

proposed rulemaking pursuant to § 1.11. 

■ 25. Revise § 1.11 to read as follows: 

§ 1.11 Commencement of a rulemaking 

proceeding. 

(a) Notice of proposed rulemaking. A 

trade regulation rule proceeding will 

commence with a notice of proposed 

rulemaking (NPRM). An NPRM will be 

published in the Federal Register not 

sooner than 30 days after it has been 

submitted to the Committee on 

Commerce, Science, and Transportation 

of the Senate and to the Committee on 

Energy and Commerce of the House of 

Representatives. 

(b) Contents of NPRM. The NPRM will 

include: 

(1) A statement containing, with 

particularity, the text of the proposed 

rule, including any alternatives, which 

the Commission proposes to 

promulgate; 

(2) Reference to the legal authority 

under which the rule is proposed; 

(3) A statement describing the reason 

for the proposed rule; 

(4) An invitation to comment on the 

proposed rule, as provided in paragraph 

(d) of this section; 

(5) A list of disputed issues of 

material fact designated by the 

Commission as necessary to be resolved, 

if any; 

(6) An explanation of the opportunity 

for an informal hearing and instructions 

for submissions relating to such a 

hearing, as provided in paragraph (e) of 

this section; and 

(7) A statement of the manner in 

which the public may obtain copies of 

the preliminary regulatory analysis, if 

that analysis is not in the notice. 

(c) Preliminary regulatory analysis. 

Except as otherwise provided by statute, 

the Commission must, when 

commencing a rulemaking proceeding, 

issue a preliminary regulatory analysis, 

which must contain: 

(1) A concise statement of the need 

for, and the objectives of, the proposed 

rule; 

(2) A description of any reasonable 

alternatives to the proposed rule which 

may accomplish the stated objective of 

the rule in a manner consistent with 

applicable law; 

(3) For the proposed rule, and for each 

of the alternatives described in the 

analysis, a preliminary analysis of the 

projected benefits and any adverse 

economic effects and any other effects, 

and of the effectiveness of the proposed 

rule and each alternative in meeting the 

stated objectives of the proposed rule; 

and 

(4) The information required by the 

Regulatory Flexibility Act, 5 U.S.C. 601– 

612, and the Paperwork Reduction Act, 

44 U.S.C. 3501–3520, if applicable. 

(d) Written comments. The 

Commission will accept written 

submissions of data, views, and 

arguments on all issues of fact, law, and 

policy. The Commission may in its 

discretion provide for a separate rebuttal 

period following the comment period. 

The subject matter of any rebuttal 

comments must be confined to subjects 

and issues identified by the Commission 

in its notice or by other interested 

persons in comments and must not 

introduce new issues into the record. 

The NPRM will establish deadlines for 

filing written comments and for filing 

rebuttal comments on the proposed rule. 

(e) Opportunity for hearing. The 

Commission will provide an 

opportunity for an informal hearing if 

an interested person requests to present 

their position orally or if the 

Commission in its discretion elects to 

hold an informal hearing. Any such 

request regarding an informal hearing 

must be submitted to the Commission 

no later than the close of the written 

comment period, including a rebuttal 

period, if any, and must include: 

(1) A request to make an oral 

submission, if desired; 

(2) A statement identifying the 

interested person’s interests in the 

proceeding; and 

(3) Any proposals to add disputed 

issues of material fact beyond those 

identified in the notice. 

■ 26. Revise § 1.12 to read as follows: 

§ 1.12 Notice of Informal Hearing and 

Designations. 

(a) Initial notice of informal hearing. 

If an informal hearing has been 

requested under § 1.11(e), a notice of 

informal hearing will be published in 

the Federal Register. The initial notice 

of informal hearing will include: 

(1) The designation of a presiding 

officer, pursuant to § 1.13(a)(1); 

(2) The time and place of the informal 

hearing; 

(3) A final list of disputed issues of 

material fact necessary to be resolved 

during the hearing, if any; 

(4) A list of the interested persons 

who will make oral presentations; 

(5) A list of the groups of interested 

persons determined by the Commission 

to have the same or similar interests in 

the proceeding; 

(6) An invitation to interested persons 

to submit requests to conduct or have 

conducted cross-examination or to 

present rebuttal submissions, pursuant 

to § 1.13(b)(2), if desired; and 

(7) Any other procedural rules 

necessary to promote the efficient and 

timely determination of the disputed 

issues to be resolved during the hearing. 

(b) Requests to conduct crossexamination or present rebuttal 

submissions. Cross-examination and 

rebuttal submissions at an informal 

hearing are available only to address 

disputed issues of material fact 

necessary to be resolved. Requests for an 

opportunity to cross-examine or to 

present rebuttal submissions must be 

accompanied by a specific justification 

therefor. In determining whether to 

grant such requests, the presence of the 

following circumstances indicate that 

such requests should be granted: 

(1) An issue for cross-examination or 

the presentation of rebuttal submissions, 

is an issue of specific fact in contrast to 

legislative fact; 

(2) A full and true disclosure with 

respect to the issue can be achieved 

only through cross-examination rather 

than through rebuttal submissions or the 

presentation of additional oral 

submissions; and 

(3) The particular cross-examination 

or rebuttal submission is required for 

the resolution of a disputed issue. 

(c) Final notice of informal hearing. 

Based on requests submitted in response 

to the initial notice of public hearing, 

the Commission will publish a final 

notice of informal hearing in the 

Federal Register. The final notice of 

public hearing will include: 

(1) A list of the interested persons 

who will conduct cross-examination 

regarding disputed issues of material 

fact; 

(2) A list of any groups of interested 

persons with the same or similar 

interests in the proceeding who will be 

required to choose a single 

representative to conduct crossexamination on behalf of the group, as 

provided in paragraph (d) of this 

section; and 

(3) A list of the interested persons 

who will be permitted to make rebuttal 

submissions regarding disputed issues 

of material fact. 

(d) Designation of group 

representatives for cross-examination. 

After consideration of any submissions 

under § 1.11(e), the Commission will, if 

appropriate, identify groups of 

interested persons with the same or 

similar interests in the proceeding. The 

Commission may require any group of 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 38549 

interested persons with the same or 

similar interests in the proceeding to 

select a single representative to conduct 

cross-examination on behalf of the 

group. 

■ 27. Revise § 1.13 to read as follows: 

§ 1.13 Conduct of informal hearing by the 

presiding officer. 

(a) Presiding officer—(1) Designation. 

In a trade regulation rule proceeding in 

which the Commission determines an 

informal hearing will be conducted, the 

initial notice of informal hearing must 

designate a presiding officer, who will 

be appointed by the Chief Presiding 

Officer specified in § 0.8 of this chapter. 

(2) Powers of the presiding officer. 

The presiding officer is responsible for 

the orderly conduct of the informal 

hearing. The presiding officer has all 

powers necessary or useful to that end, 

including the following: 

(i) To issue any public notice that may 

be necessary for the orderly conduct of 

the informal hearing; 

(ii) To modify the location, format, or 

time limits prescribed for the informal 

hearing, except that the presiding officer 

may not increase the time allotted for an 

informal hearing beyond a total of five 

hearing days over the course of a thirtyday period, unless the Commission, 

upon a showing of good cause, extends 

the number of days for the hearing; 

(iii) To prescribe procedures or issue 

rulings to avoid unnecessary costs or 

delay, including, but not limited to, the 

imposition of reasonable time limits on 

the number and duration of oral 

presentations from individuals or 

groups with the same or similar 

interests in the proceeding and 

requirements that any crossexamination, which a person may be 

entitled to conduct or have conducted, 

be conducted by the presiding officer on 

behalf of that person in such a manner 

as the presiding officer determines to be 

appropriate and to be required for a full 

and true disclosure with respect to any 

issue designated for consideration in 

accordance with § 1.13(b)(1); 

(iv) To issue rulings selecting or 

modifying the designated 

representatives of groups of interested 

persons, as provided in paragraph (a)(3) 

of this section; 

(v) To require that oral presentations 

at the informal hearing be under oath; 

(vi) To require that oral presentations 

at the informal hearing be submitted in 

writing in advance of presentation; and 

(viii) To rule on all requests of 

interested persons made during the 

course of the informal hearing. 

(3) Selection or modification of group 

representatives. If a group of interested 

persons designated by the Commission 

under § 1.12(d) to select a group 

representative is unable to agree upon a 

representative, the presiding officer may 

select a representative for the group. 

The presiding officer may entertain 

requests by a member of a group of 

interested persons to conduct or have 

conducted cross-examination under 

paragraph (b)(2) of this section if, after 

good-faith effort, the person is unable to 

agree upon a single representative with 

other group members and is able to 

demonstrate that the group 

representative will not adequately 

represent the person’s interests. If the 

presiding officer finds that there are 

substantial and relevant issues or data 

that will not be adequately presented by 

the group representative, then the 

presiding officer may allow that person 

to conduct or have conducted any 

appropriate cross-examination on issues 

affecting the person’s particular 

interests. 

(4) Organization. In the performance 

of their rulemaking functions, presiding 

officers are responsible to the chief 

presiding officer who must not be 

responsible to any other officer or 

employee of the Commission. 

(5) Ex parte communications. Except 

as required for the disposition of ex 

parte matters as authorized by law, no 

presiding officer may consult any 

person or party with respect to any fact 

in issue unless such officer gives notice 

and opportunity for all parties to 

participate. 

(b) Additional procedures when there 

are disputed issues of material fact. If 

requested under § 1.11(d), an informal 

hearing with the opportunity for oral 

presentations will be conducted by the 

presiding officer. In addition, if the 

Commission determines that there are 

disputed issues of material fact that are 

material and necessary to resolve, the 

informal hearing on such issues will be 

conducted in accordance with 

§ 1.13(b)(2). 

(1) Nature of issues for consideration 

in accordance with § 1.13(b)(2)—(i) 

Issues that must be considered in 

accordance with § 1.13(b)(2). The only 

issues that must be designated for 

consideration in accordance with 

paragraphs (b)(2) of this section are 

disputed issues of fact that are 

determined by the Commission to be 

material and necessary to resolve. 

(ii) Addition or modification of issues 

for consideration in accordance with 

§ 1.13(b)(2). The presiding officer may at 

any time on the presiding officer’s own 

motion or pursuant to a written petition 

by interested persons, add or modify 

any issues designated pursuant to 

§ 1.12(a). No such petition shall be 

considered unless good cause is shown 

why any such proposed issue was not 

proposed pursuant to § 1.11(e). In the 

event that new issues are designated, 

the presiding officer may determine 

whether interested persons may conduct 

cross-examination or present rebuttal 

submissions with respect to each new 

issue, as provided in § 1.12(b), and may 

select or modify group representatives 

for cross examination with respect to 

each new issue, as provided in 

paragraph (a)(3) of this section. 

(2) Cross-examination and the 

presentation of rebuttal submissions by 

interested persons. The presiding officer 

will conduct or allow to be conducted 

cross-examination of oral presentations 

and the presentation of rebuttal 

submissions relevant to the disputed 

issues of material fact designated for 

consideration during the informal 

hearing. For that purpose, the presiding 

officer may require submission of 

written requests for presentation of 

questions to any person making oral 

presentations and will determine 

whether to ask such questions or any 

other questions. All requests for 

presentation of questions will be placed 

in the rulemaking record. The presiding 

officer will also allow the presentation 

of rebuttal submissions as appropriate 

and required for a full and true 

disclosure with respect to the disputed 

issues of material fact designated for 

consideration during the informal 

hearing. 

(c) Written transcript. A verbatim 

transcript will be made of the informal 

hearing and placed in the rulemaking 

record. 

(d) Recommended decision. The 

presiding officer will make a 

recommended decision based on their 

findings and conclusions as to all 

relevant and material evidence. The 

recommended decision will be made by 

the presiding officer who presided over 

the informal hearing except that such 

recommended decision may be made by 

another officer if the officer who 

presided over the hearing is no longer 

available to the Commission. The 

recommended decision must be 

rendered within sixty days of the 

completion of the hearing. If a petition 

for review of a ruling by the presiding 

officer has been filed under paragraph 

(e) of this section, the recommended 

decision must be rendered within sixty 

days following the resolution of that 

petition or any rehearing required by the 

Commission. The presiding officer’s 

recommended decision will be limited 

to explaining the presiding officer’s 

proposed resolution of disputed issues 

of material fact. 

(e) Post-hearing review by the 

Commission of rulings by the presiding 


lotter on DSK11XQN23PROD with RULES1
38550 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 

officer. (1) Within ten days of the 

completion of the informal hearing, any 

interested person may petition the 

Commission for review of a ruling by 

the presiding officer denying or limiting 

the petitioner’s ability to conduct crossexamination or make rebuttal 

submissions upon a showing that the 

ruling precluded disclosure of a 

disputed material fact that was 

necessary for fair determination by the 

Commission of the rulemaking 

proceeding as a whole. Such petitions 

must not exceed eight thousand words. 

This word count limitation includes 

headings, footnotes, and quotations, but 

does not include the cover, table of 

contents, table of citations or 

authorities, glossaries, statements with 

respect to oral argument, any 

addendums containing statutes, rules or 

regulations, any certificates of counsel, 

or proposed form of order. A petition 

hereunder will not stay the rulemaking 

proceeding unless the Commission so 

orders. All petitions filed under this 

paragraph will be a part of the 

rulemaking record. 

(2) The Commission may, in its 

discretion, hear the appeal. Commission 

review, if granted, will be based on the 

petition and anything on the rulemaking 

record, without oral argument or further 

briefs, unless otherwise ordered by the 

Commission. If the Commission grants 

review, it will render a decision within 

thirty days of the announcement of its 

decision to review unless, upon a 

showing of good cause, the Commission 

extends the number of days for review. 

■ 28. Revise § 1.14 to read as follows: 

§ 1.14 Promulgation. 

(a) The Commission, after review of 

the rulemaking record, may issue, 

modify, or decline to issue any rule. If 

the Commission wants further 

information or additional views of 

interested persons, it may withhold 

final action pending the receipt of such 

additional information or views. If it 

determines not to issue a rule, it may 

adopt and publish an explanation for 

not doing so. 

(1) Statement of basis and purpose. If 

the Commission determines to 

promulgate a rule, it will adopt a 

statement of basis and purpose to 

accompany the rule, which must 

include: 

(i) A statement regarding the 

prevalence of the acts or practices 

treated by the rule; 

(ii) A statement as to the manner and 

context in which such acts or practices 

are unfair or deceptive; and 

(iii) A statement as to the economic 

effect of the rule, taking into account the 

effect on small businesses and 

consumers. 

(2) Final regulatory analysis. Except 

as otherwise provided by statute, if the 

Commission determines to promulgate a 

final rule, it will issue a final regulatory 

analysis relating to the final rule. Each 

final regulatory analysis must contain: 

(i) A concise statement of the need 

for, and the objectives of, the final rule; 

(ii) A description of any alternatives 

to the final rule that were considered by 

the Commission; 

(iii) An analysis of the projected 

benefits and any adverse economic 

effects and any other effects of the final 

rule; 

(iv) An explanation of the reasons for 

the determination of the Commission 

that the final rule will attain its 

objectives in a manner consistent with 

applicable law and the reasons the 

particular alternative was chosen; 

(v) A summary of any significant 

issues raised by the comments 

submitted during the public comment 

period in response to the preliminary 

regulatory analysis, and a summary of 

the assessment by the Commission of 

such issues; and 

(vi) The information required by the 

Regulatory Flexibility Act, 5 U.S.C. 601– 

612, and the Paperwork Reduction Act, 

44 U.S.C. 3501–3520, if applicable. 

(3) Small entity compliance guide. For 

each rule for which the Commission 

must prepare a final regulatory 

flexibility analysis, the Commission will 

publish one or more guides to assist 

small entities in complying with the 

rule. Such guides will be designated as 

‘‘small entity compliance guides.’’ 

(b) If the Commission determines, 

upon its review of the rulemaking 

record, to propose a revised rule for 

further proceedings in accordance with 

this subpart, such proceedings, 

including the opportunity of interested 

persons to avail themselves of the 

procedures of § 1.13(b)(2), will be 

limited to those portions of the revised 

rule, the subjects and issues of which 

were not substantially the subject of 

comment in response to a previous 

notice of proposed rulemaking. 

(c) The final rule will be published in 

the Federal Register and will include 

the Statement of Basis and Purpose for 

the rule or provide an explanation of the 

manner in which the public may obtain 

copies of that document. 

■ 29. Revise § 1.16 to read as follows: 

§ 1.16 Petition for exemption from trade 

regulation rule. 

Any person to whom a rule would 

otherwise apply may petition the 

Commission for an exemption from 

such rule. The procedures for 

determining such a petition will be 

those of subpart C of this part. 

■ 30. Revise § 1.18 to read as follows: 

§ 1.18 Rulemaking record. 

(a) Definition. For purposes of these 

rules the term rulemaking record 

includes the final rule, its statement of 

basis and purpose, the verbatim 

transcripts of the informal hearing, if 

any, written submissions, the 

recommended decision of the presiding 

officer, any communications placed on 

the rulemaking record pursuant to 

§ 1.18(c), and any other information the 

Commission considers relevant to the 

rule. 

(b) Public availability. The rulemaking 

record will be publicly available except 

when the Commission, for good cause 

shown, determines that it is in the 

public interest to allow any submission 

to be received in camera subject to the 

provisions of § 4.9 of this chapter. 

(c) Communications to 

Commissioners and Commissioners’ 

personal staffs—(1) Communications by 

outside parties. Except as otherwise 

provided in this subpart or by the 

Commission, after the Commission 

votes to issue a notice of proposed 

rulemaking, comment on the proposed 

rule should be directed as provided in 

the notice. Communications with 

respect to the merits of that proceeding 

from any outside party to any 

Commissioner or Commissioner’s 

advisor will be subject to the following 

treatment: 

(i) Written communications. Written 

communications, including written 

communications from members of 

Congress, received within the period for 

acceptance of initial or rebuttal written 

comments or other written submissions 

will be placed on the rulemaking record. 

Written communications received 

outside of the time periods designated 

for acceptance of written comments or 

other written submissions will be 

placed on public record unless the 

Commission votes to place them on the 

rulemaking record. 

(ii) Oral communications. Oral 

communications to a Commissioner or 

Commissioner’s advisor are permitted 

only when advance notice of such oral 

communications is published by the 

Commission’s Office of Public Affairs in 

its Weekly Calendar and Notice of 

‘‘Sunshine’’ Meetings. A 

Commissioner’s advisor will ensure 

such oral communications are 

transcribed verbatim or summarized at 

the discretion of the Commissioner or 

Commissioner’s advisor to whom such 

oral communications are made and 

promptly placed on the rulemaking 

record. Memoranda summarizing such 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 38551 

1 15 U.S.C. 57a(c)(2). 

2Public Law 93–637, 88 Stat. 2183 (1975). 

3Though few of the Trade Regulation Rules from 

that initial burst of Section 18 activity have 

survived the ensuing deregulatory backlash, many 

other TRRs under various FTC authorities have 

continued to provide important regulatory guidance 

on issues of public concern. Among those are: The 

Negative Option Rule (16 CFR part 425); the 

Franchise Rule (16 CFR part 436); the Business 

Opportunity Rule (16 CFR part 437); the Credit 

Practices Rule (16 CFR part 444); the Funeral Rule 

(16 CFR part 453); and the Eyeglass Rule (16 CFR 

part 456). 4Public Law 96–252, Section 8(a)(3). 

oral communications must list all 

persons attending or otherwise 

participating in the meeting at which 

the oral communication was made, and 

summarize all data presented and 

arguments made during the meeting. 

(iii) Congressional communications. 

The provisions of paragraph (c)(1)(ii) of 

this section do not apply to 

communications from Members of 

Congress. Memoranda prepared by the 

Commissioner or Commissioner’s 

advisor setting forth the contents of any 

oral congressional communications will 

be placed on the public record. If the 

communication occurs within the 

comment period and is transcribed 

verbatim or summarized, the transcript 

or summary will be promptly placed on 

the rulemaking record. A transcript or 

summary of any oral communication 

which occurs after the time period for 

acceptance of written comments will be 

placed promptly on the public record. 

(2) Communications by certain 

officers, employees, and agents of the 

Commission. After the Commission 

votes to issue a notice of proposed 

rulemaking, any officer, employee, or 

agent of the Commission with 

investigative or other responsibility 

relating to any rulemaking proceeding 

within any operating bureau of the 

Commission is prohibited from 

communicating or causing to be 

communicated to any Commissioner or 

to the personal staff of any 

Commissioner any fact which is 

relevant to the merits of such 

proceeding and which is not on the 

rulemaking record of such proceeding, 

unless such communication is made 

available to the public and is included 

in the rulemaking record. The 

provisions of this subsection do not 

apply to any communication to the 

extent such communication is required 

for the disposition of ex parte matters as 

authorized by law. 

■ 31. Revise § 1.19 to read as follows: 

§ 1.19 Modification of a rule by the 

Commission at the time of judicial review. 

If a reviewing court orders, under 

section 18(e)(2) of the Federal Trade 

Commission Act (15 U.S.C. 57a(e)(2)), 

further submissions and presentations 

on the rule, the Commission may 

modify or set aside its rule or make a 

new rule by reason of the additional 

submissions and presentations. Such 

modified or new rule will then be filed 

with the court together with an 

appropriate statement of basis and 

purpose and the return of such 

submissions and presentations. 

■ 32. Revise § 1.20 to read as follows: 

§ 1.20 Alternative procedures. 

If the Commission determines at the 

commencement of a rulemaking 

proceeding to employ procedures other 

than those established in this subpart, it 

may do so by announcing those 

procedures in the Federal Register 

notice commencing the rulemaking 

proceeding. 

By direction of the Commission. 

April J. Tabor, 

Secretary. 

The Following Will Not Appear in the 

Code of Federal Regulations 

Statement of Commissioner Rebecca 

Kelly Slaughter Joined by Chair Lina 

Khan and Commissioner Rohit Chopra 

Regarding the Adoption of Revised 

Section 18 Rulemaking Procedures 

The FTC’s revisions to Parts 0 and 1 

of the Commission’s Rules of Practice 

will bring the Commission’s procedures 

for promulgating Trade Regulation 

Rules under Section 18 of the FTC Act 

in line with the statute’s requirements. 

These changes reflect the Commission’s 

serious appreciation of its statutory 

obligation to ‘‘avoid unnecessary costs 

or delay’’ 1 in those proceedings and our 

commitment to using all of our available 

tools robustly to protect consumers from 

the unfair and deceptive tricks and traps 

they face in our modern economy. 

I. Background 

The mandate of the Federal Trade 

Commission is to address ‘‘unfair or 

deceptive acts or practices’’ and ‘‘unfair 

methods of competition’’ in or affecting 

commerce. In 1975, Congress passed the 

Magnuson-Moss Warranty—Federal 

Trade Commission Improvement Act 2

laying out specific procedures for the 

promulgation of ‘‘Trade Regulation 

Rules’’ to protect consumers in a 

dynamic and changing economic 

landscape. Indeed, the Commission 

rightfully responded to this grant of 

authority by initiating more than a 

dozen rulemakings in the few months 

and years after its passage.3 Yet, in the 

intervening decades, we have nearly 

abandoned using Section 18 rulemaking 

as it was intended: To provide a 

participatory, dynamic process for 

setting out clear conduct rules for 

industry. The change in approach began 

in the early 1980s amid a broad 

deregulatory wave, including at the 

Commission. The Federal Trade 

Commission Improvements Act of 1980 

instituted some lasting revisions around 

the edges of FTC rulemaking, including 

adding a requirement to issue an 

Advance Notice of Proposed 

Rulemaking (ANPRM) before initiating 

rulemaking.4 However, the true and 

lasting changes to the FTC were selfimposed limitations through 

bureaucratic organization. 

The FTC of the 1980s sought to 

radically reduce the agency’s 

rulemaking capacity. A fundamental 

part of that posture are the agencypromulgated rules of practice. Parts 0 

and 1 of these rules shape Commission 

behavior and process for Section 18 

rulemaking. The imposition of 

requirements beyond what Congress 

provided in statute has led to the 

widespread belief among some 

commentators and policymakers that 

Section 18 rulemaking is too difficult to 

address many of the unfair and 

deceptive practices prevalent in the 

economy today. 

II. Changes to the Rules of Practice 

These changes to the rules of practice 

realign Commission practice with our 

statutory requirements and remove 

those extraneous and onerous 

procedures that serve only to delay 

Commission business. These 

streamlined Section 18 rules still 

provide far greater transparency, 

process, and opportunity for the public 

and businesses alike to be heard than 

APA notice-and-comment rulemaking 

procedures. 

These changes include providing the 

Commission with greater accountability 

and control over Section 18 rulemaking 

including deciding the final list of 

disputed material facts to be resolved, 

deciding who will make oral 

presentations to the Commission and 

who will cross examine or present 

rebuttals submissions. The chair will 

now either serve as or designate the 

Chief Presiding Officer and the 

Commission will ensure orderly 

conduct for those rulemakings. 

Previously, the Chief Administrative 

Law Judge was designated as Chief 

Presiding Officer in Part 0, which 

reinforced the myth that Section 18 

rulemakings required elaborate, 

interminable judicial processes instead 

of straightforward public participation. 

Additionally, these streamlined 


lotter on DSK11XQN23PROD with RULES1
38552 Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 

5 15 U.S.C. 57a. 

1 I have issued several statements discussing this 

previously. See Regulatory Review of Safeguards 

Rule, Dissenting Statement of Commissioner Noah 

Joshua Phillips and Commissioner Christine S. 

Wilson (Mar. 5, 2019), available at https://

www.ftc.gov/system/files/documents/ 

publicstatements/1466705/reg_review_of_

safeguards_rule_cmr_phillips_wilson_dissent.pdf; 

Notice of Proposed Rulemaking: Energy Labeling 

Rule, Dissenting Statement of Christine S. Wilson 

(Dec. 10, 2018), available at https://www.ftc.gov/ 

system/files/documents/publicstatements/1433166/ 

2018-12-7_statement_of_c_wilson_energy_

labeling.pdf. 

2Magnuson-Moss Warranty Act, Public Law 93– 

637, 88 Stat. 2183. 

3 I have described some of these rulemaking 

initiatives in recent statements. See Notice of 

Proposed Rulemaking for the Energy Labeling Rule, 

Dissenting Statement of Commissioner Christine S. 

Wilson (Dec. 22, 2020), available at https://

www.ftc.gov/system/files/documents/public_

statements/1585242/commission_wilson_

dissenting_statement_energy_labeling_rule_final12- 

22-2020revd2.pdf; Advance Notice of Proposed 

Rulemaking for Regulatory Review of the Amplifier 

Rule, Concurring Statement of Commissioner 

Christine S. Wilson (Dec. 17, 2020), available at 

https://www.ftc.gov/system/files/documents/ 

public_statements/1585038/ 

p974222amplifierrulewilsonstatement.pdf. 

4The FTC as National Nanny, Wash. Post (Mar. 

1, 1978), https://www.washingtonpost.com/archive/ 

politics/1978/03/01/the-ftc-as-national-nanny/ 

69f778f5-8407-4df0-b0e9-7f1f8e826b3b/. 

5S. Rep. No. 96–500, at 3 (1979). 

6Federal Trade Commission Improvements Act of 

1980, Public Law 96–252, 94 Stat. 374. 

7Ernest Gellhorn, The Wages of Zealotry: The 

FTC Under Siege, 4 Regulation 33 (1980). 

8Federal Trade Commission Improvements Act of 

1980, Public Law 96–252, 94 Stat. 374. 

provisions allow Commission to 

designate disputed issues of material 

fact earlier in the rulemaking 

proceeding with the issuance of the 

Notice of Proposed Rulemaking (NPRM) 

and avoid delaying proceedings with 

unrelated matters late in the process. 

These procedures also enhance 

Commission transparency by requiring 

that records of both written and oral 

communications to a Commissioner or 

their advisors during a rulemaking 

proceeding will be placed in the 

rulemaking record and be available to 

the public. 

The revised rules respect the 

underlying statutory requirements of 

Section 18 that provide ample 

transparency and opportunity for public 

participation in the promulgation of 

Trade Regulation Rules. These 

requirements include: The publication 

of an ANPRM for comment; the advance 

submission of the ANPRM to our 

congressional oversight committees; the 

publication of an NPRM; the advance 

submission of the NPRM to the 

congressional committees; an informal 

hearing to resolve any disputed issue of 

material fact; and publication of a final 

rule accompanied by a statement of 

basis and purpose.5 These statutory 

guidelines provide for substantially 

greater public engagement and 

congressional oversight than the 

Administrative Procedure Act, under 

which most federal rulemaking is 

conducted. The Commission’s rules of 

practice should—and now do—adhere 

closely to this statutory framework. 

III. Conclusion 

Revitalizing the Commission’s ability 

to issue timely Trade Regulation Rules 

under Section 18 will provide much 

needed clarity about how our centuryold statute applies to contemporary 

economic realities and will allow the 

FTC to define with specificity what acts 

or practices are unfair or deceptive 

under Section 5 of the FTC Act. 

Prospective trade rules will give 

businesses and consumers concrete 

guidance about their responsibilities 

and rights. Importantly the Commission 

will be able to exercise its prosecutorial 

discretion to seek a wide variety of 

relief, including redress, civil monetary 

penalties, reformation of contracts, and 

other relief, against first-time violators 

of Trade Regulation Rules under Section 

19 of the FTC act. While rulemaking is 

no substitute for a permanent fix to our 

Section 13(b) authority to obtain 

monetary relief, trade rules can help 

ensure businesses will no longer be able 

to take advantage of consumers and 

cement their market position by 

engaging in practices that do people real 

harm until we catch them and take them 

to court the first time. 

Self-imposed red tape has only 

created uncertainty and delay for the 

important business of this Commission. 

The imposition of those requirements 

decades ago was the FTC’s signal to the 

business world that the brief era of 

Section 18 rulemaking had come to an 

end. With the adoption of these 

streamlined procedures we wish to 

signal a change in Commission practice 

and ambition: We intend to fulfil our 

mission to protect against unfair and 

deceptive practices in commerce and 

provide consumers and businesses with 

due process, clarity, and transparency 

while crafting the rules to do so. 

Dissenting Statement of Commissioner 

Christine S. Wilson 

Regulations, even well-intentioned 

ones, impose costs that stifle 

innovation, raise the costs of doing 

business, limit consumer choice and 

increase the prices that consumers must 

pay, and ultimately undercut America’s 

global competitiveness.1 Congress 

empowered the FTC to issue trade 

regulations when it passed the 

Magnuson-Moss Act.2 At the same time, 

it imposed significant procedural 

obligations on the Commission to cabin 

the agency’s broad rulemaking 

discretion. 

In the wake of the Magnuson-Moss 

Act, the agency engaged in a flurry of 

rulemaking activity that sought to 

regulate broad swaths of the economy.3

The negative reaction from businesses 

and many in Congress was swift. During 

this period, the Washington Post 

famously accused the agency of 

attempting to be the ‘‘national nanny.’’ 4

Congress found that the agency’s 

rulemaking efforts were filled with 

‘‘excessive ambiguity, confusion, and 

uncertainty.’’ 5 Backlash from the 

agency’s sweeping regulatory efforts of 

the late 1970s culminated in the Federal 

Trade Commission Improvements Act of 

1980, which imposed additional 

procedural obligations on Section 18 

rulemaking efforts.6 In other words, 

Congress sought to cabin the agency’s 

discretion even more in what famed 

legal scholar Earnest Gellhorn 

characterized as ‘‘The Wages of 

Zealotry.’’ 7

Considering the backlash to this 

agency’s earlier era of unbounded 

rulemaking activity, I am gravely 

concerned about today’s proposals to 

pare down procedural safeguards 

embedded in our rules of practice 

related to Section 18 rulemaking. I want 

to thank Commissioner Slaughter for her 

transparency in explaining the materials 

included in the Commission’s Section 

18 rule proposal. Making this kind of 

information available to the public 

helps to foster the public’s 

understanding of our proposal and also 

creates an opportunity for more open 

dialogue. Considering the proposal 

outlined by Commissioner Slaughter 

today, I would find it constructive to 

discuss a number of questions. 

First, with respect to the objective 

management of the rulemaking process: 

The role of a Presiding Officer is to 

oversee the fair adjudication of the 

hearing process and make independent 

recommendations to the Commission 

based on relevant and material 

evidence. During the 1970s rulemaking 

spree, the Presiding Officer was viewed 

as a puppet of agency management, 

leading to the perception that outcomes 

were biased and predetermined. To 

address this issue and build trust in the 

rulemaking process, Congress imposed 

obligations designed to ensure the 

independence of the Presiding Officer.8

The Commission, heeding 

Congressional concerns regarding 

independence, required the Chief 

Administrative Law Judge to serve as 

the Chief Presiding Officer and 


lotter on DSK11XQN23PROD with RULES1
Federal Register / Vol. 86, No. 138 / Thursday, July 22, 2021 / Rules and Regulations 38553 

9 Id. See also J. Howard Beales III, The Federal 

Trade Commission’s Use of Unfairness Authority: 

Its Rise, Fall, and Resurrection, 22 J. Pub. Pol’y & 

Mktg. 192 (2003). 

10For other reactions to the Majority Staff Report, 

see Christine S. Wilson, Remarks for American Bar 

Association Webcast, Interview with Commissioner 

Wilson and Barry Nigro on the House Judiciary 

Report, (Nov. 13 2020), https://www.ftc.gov/system/ 

files/documents/public_statements/1588040/aba_

interview_with_commissioner_wilson_on_the_

house_judiciary_report.pdf and Christine S. Wilson, 

Remarks for the 2020 Global Forum on 

Competition, (Dec. 7 2020), https://www.ftc.gov/ 

system/files/documents/publicstatements/1589376/ 

wilson-oecd-2020remarks.pdf. 

11See Majority Staff Of H. Comm. On The 

Judiciary, 116th Cong., Investigation Of 

Competition In Digital Markets 7 (2020), https://

judiciary.house.gov/uploadedfiles/competition_in_

digital_markets.pdf at 380 (‘‘In the railroad 

industry, for example, a congressional investigation 

found that the expansion of common carrier 

railroads into the coal market undermined 

independent coal producers, whose wares the 

railroads would deprioritize in to give themselves 

superior access to markets. In 1893, the Committee 

on Interstate and Foreign Commerce wrote that ‘[n]o 

competition can exist between two producers of a 

commodity when one of them has the power to 

prescribe both the price and output of the other.’ 

Congress subsequently enacted a provision to 

prohibit railroads from transporting any goods that 

they had produced or in which they held an 

interest.’’); id. at 382 (‘‘The 1887 Interstate 

Commerce Act, for example, prohibited 

discriminatory treatment by railroads.’’); id. at 383 

(‘‘Historically, Congress has implemented 

nondiscrimination requirements in a variety of 

markets. With railroads, the Interstate Commerce 

Commission oversaw obligations and prohibitions 

applied to railroads designated as common 

carriers’’); see also Christine S. Wilson & Keith 

Klovers, The growing nostalgia for past regulatory 

misadventures and the risk of repeating these 

mistakes with Big Tech, 8 J. Antitrust Enforcement 

10, 12–14 (2019), https://academic.oup.com/ 

antitrust/article/8/1/10/564371 (discussing the 

benefits from dissolving the ICC). 

empowered the Presiding Officers to 

lead the hearing process. 

• In light of these Congressional 

concerns, why does today’s proposal 

move away from using independent 

ALJs as Presiding Officers? How can we 

avoid public perception that the 

Commission is politicizing the 

rulemaking process if the Chair appoints 

the Presiding Officer? 

• How can we preserve the 

independence of the Presiding Officer if 

the Commission, not the Presiding 

Officer, decides which issues will be 

discussed at the hearing and which 

parties will be permitted to testify, 

conduct cross-examination, and offer 

rebuttal evidence? 

• How can the Commission ensure 

we get a neutral and thorough 

accounting of evidence and data instead 

of a cherry-picked record that serves an 

agenda? 

• Under the revised rules, the 

Commission, not the Presiding Officer, 

will determine the list of disputed 

issues of material facts. How can 

stakeholders ensure that their proposed 

factual disputes will be part of the 

rulemaking record if their input is out 

of step with the majority view of the 

Commission? 

Second, with respect to procedural 

limitations that impact public 

understanding and opportunities for 

input: The rule revisions remove selfimposed restrictions I view as deliberate 

choices by this agency to comply not 

just with the letter of our Congressional 

mandate but the spirit of the law. 

Following our rulemaking spree in the 

1970s, the FTC was stripped of funding, 

stripped of legal authorities, and 

required to institute new and substantial 

rulemaking steps to foster public trust in 

our trade rules.9 Recognizing this 

agency was on the brink of being 

shuttered, our rules of practice adopted 

a number of rulemaking procedures that 

provided for additional public comment 

periods, publication of a staff report, 

and multiple opportunities for the 

public to weigh in on disputed issues of 

material fact. While the procedures as 

revised may comply with the statute as 

drafted, I support the FTC’s existing 

approach that provides for robust 

additional public input. 

• If the agency is preparing to remove 

discretionary steps from our rulemaking 

process, are we concerned the more 

limited process will fail to identify 

unintended consequences of proposed 

rules, particularly those that could harm 

small businesses and marginalized 

communities? 

• Is the Commission concerned that 

the public will view the more limited 

opportunities to comment on proposed 

rules as running counter to the 

democratic rationales for rulemaking my 

colleagues have previously espoused? 

Additionally, rulemaking efforts are 

enhanced when the public has the input 

from expert staff at agencies overseeing 

the rulemaking process. The FTC has 

built transparency into our rules of 

practice by requiring that rulemaking 

staff publish a staff report containing 

their analysis of the rulemaking record 

and recommendations as to the form of 

the final rule. But the new rules 

eliminate the staff report requirement. 

• Considering the value of staff 

reports, how will the Commission build 

trust in the enforcement of new trade 

rules without transparency into staff’s 

recommendations? 

• In what ways will the public’s 

understanding of any final rules suffer 

because the Commission will no longer 

publish a report from expert FTC staff 

highlighting key issues and formulating 

recommendations based on the record? 

The Commission’s proposal to revise 

its rules of practice related to Section 18 

rulemaking procedures is not a small 

adjustment enacted to improve 

efficiency. These changes have the 

potential to usher in a return to 

aggressive, unbounded rulemaking 

efforts that could transform entire 

industries without clear theories of law 

violations and empirical foundations for 

recommended regulatory burdens. Even 

as we speak, Congress is considering 

bills that run the gamut from giving the 

FTC expansive new authority and 

resources to eliminating the agency’s 

jurisdiction. In the midst of so much 

criticism and scrutiny from so many 

angles regarding so many aspects of our 

jurisdiction, why are we embarking on 

this path of revisiting an era that led to 

such significant constraints on our 

jurisdiction? 

As the saying goes, if you don’t 

acknowledge the mistakes of the past, 

you are doomed to repeat them. One 

striking example of this disregard for 

history can be found in the House 

Judiciary Committee’s Majority Staff 

Report, which 12 different times points 

to railroad regulation as a model for Big 

Tech.10 In a stunning omission, 

nowhere in its 450 pages or 2,500 

footnotes does the report mention the 

fact of the bipartisan repeal of this 

regulatory framework because it harmed 

consumers and stifled innovation; 

neither does it mention the benefits that 

came from deregulation.11

There are many at the FTC who lived 

through the 1970s and 1980s and 

experienced the public and 

Congressional backlash during those 

dark days of the agency’s history. There 

are many others who worked with and 

learned from those who lived through 

that period. Current management would 

be wise to seek their guidance. 

[FR Doc. 2021–15313 Filed 7–21–21; 8:45 am] 

BILLING CODE 6750–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

U.S. Customs and Border Protection 

19 CFR Part 145 

[CBP Dec. 21–08] 

RIN 1651–AB33 

Mandatory Advance Electronic 

Information for International Mail 

Shipments; Correction 

AGENCY: U.S. Customs and Border 

Protection, DHS. 

ACTION: Interim final rule; correcting 

amendments. 


lotter on DSK11XQN23PROD with RULES1